Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 1 of 49 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

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1 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 1 of 49 Civil Action No. 06-CV PSF-MJW CLARENCE VANDEHEY; WILLIAM LANGLEY; SAMUEL LINCOLN; and JARED HOGUE, v. IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Plaintiffs, on behalf of themselves and all others similarly situated, LOU VALLARIO, Sheriff of Garfield County, Colorado, in his official capacity; and SCOTT DAWSON, a Commander in the Garfield County Sheriff s Department, in his official capacity, Defendants. REPLY OF PLAINTIFFS IN SUPPORT OF AMENDED MOTION TO CERTIFY CLASS

2 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 2 of 49 TABLE OF CONTENTS I. INTRODUCTION... 1 II. ARGUMENT... 4 A. The Proposed Class Should Be Certified Because it Satisfies the Requirements of Rule 23(a) Plaintiffs Satisfy the Impracticability of Joinder Requirement in Rule 23(a)(1) There are questions of law and fact common to the class The claims are typical of the claims of the class The proposed class representatives can adequately represent the entire class B. The Proposed Class Should Be Certified Because It Satisfies the Requirements of Rule 23(b)(2) Plaintiffs have adequately specified a remedy This Court can enjoin Defendants' systemic deficiencies C. This Action Is Manageable As a Class Action D. Class Certification Is Necessary to Allow Plaintiffs to Present Their Constitutional Claims to the Federal Courts III. CONCLUSION i

3 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 3 of 49 TABLE OF AUTHORITIES CASES Page(s) Adamson v. Bowen, 855 F.2d 668 (10 th Cir. 1998)...24, 33 Anderson v. Cornejo, 199 F.R.D. 228 (D. Ill. 2000)...8 Anderson v. Coughin, 119 F.R.D. 1 (N.D.N.Y. 1988)...6 Anderson v. Garner, 22 F. Supp.2d 1379 (N.D. Ga. 1997)... 17, Armstrong v. Davis, 275 F.3d 849 (9 th Cir. 2001)...12 Arney v. Finney, 967 F.2d 418 (10 th Cir. 1992)...2, 34 Austin v. Hopper, 15 F.Supp.2d 1210 (M.D.Ala. 1998)...8, 19, 34 Austin v. Pennsylvania Dep t of Corrections, 876 F. Supp Baby Neal v. Casey, 43 F.3d 48 (3d Cir. 1994) , Battle v. Anderson, 970 F.2d 716 (10 th Cir. 1992)...2, 21 Bell v. Wolfish, 441 U.S. 520 (1979)...7 Bradley v. Harrelson, 151 F.R.D. 422 (M.D. Ala. 1993)...6 Carper v. Deland, 54 F.3d 613 (10 th Cir. 1995)...2 ii

4 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 4 of 49 Christina A. v. Bloomberg, 197 F.R.D. 664 (S.D. 2000)...2, 17-19, 21, 24-26, 30, 34 Clarkson v. Coughlin, 783 F. Supp. 789 (S.D.N.Y. 1992)...38 Coleman v. Wilson, 912 F.Supp (E.D. Cal. 1995)...2, 6, 32, 34 Collins v. Cundy, 603 F.2d 825 (10 th Cir. 1979)...27 Craig v. Eberly, 164 F.3d 490 (10 th Cir. 1998)...7, 30 Curtis v. Voss, 73 F.R.D. 580 (N.D.Ill. 1976)...17 Dasrath v. Continental Airlines, Inc., 228 F.Supp.2d 531 (D. N.J. 2002)...31 Diaz v. Romer, 961 F.2d 1508 (10 th Cir. 1992)...2, 34 Duran v. Carruthers, 885 F.2d 1485 (10 th Cir. 1989)...2, 34 E. Jones 'EL v. Berge, 2001 WL (W.D. Wis.)...5 Eisen v. Carlisle & Jacqueline, 417 U.S. 156 (1974)...9 Farmer v. Brennan, 511 U.S. 825 (1994)...9 Farm Labor Org. Comm. v. Ohio State Highway Patrol, 184 F.R.D. 583 (D. Ohio 1998)...8 Ferola v. Moran, 622 F. Supp. 814 (D.R.I. 1985)...28, 32 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167 (2000)...30 iii

5 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 5 of 49 Fuentes v. Wagner, 206 F.3d 335 (3 rd Cir. 2000)...29 Garris v. Gianetti, 160 F.R.D. 61 (E.D. Pa. 1995)...35 Gehl Group v. Koby, 838 F. Supp (D. Colo. 1993)...27 Gerstein v. Pugh, 420 U.S. 103 (1975)...38 Green v. Ferrell, 664 F.2d 1292 (5 th Cir. 1982)...7 Hargett v. Baker, 2002 WL (N.D.Ill.)...19, 26, 32 Hassine v. Jeffes, 846 F.2d 169 (3d Cir. 1988)...12, 21 Hawkins v. Comparet-Cassani, 251 F.3d 1230 (9 th Cir. 2001)...2, 28, 32, 34 Hayes v. Secretary of Dept. of Public Safety, 455 F.2d 798 (4 th Cir. 1972)...20 Helling v. McKinney, 509 U.S. 25 (1993)...9 Hiatt v. County of Adams, Ohio, 155 F.R.D. 605 (S.D. Ohio 1994)...5, 18, 33 Hoptowit v. Ray, 682 F.2d 1237 (9 th Cir. 1982)...17 In re Antibiotic Antitrust Actions, 333 F. Supp. 278 (S.D.N.Y. 1971)...37 In re Potash Antitrust Litigation, 159 F.R.D. 682 (D. Minn. 1995)...36 In re Storage Technology Corp. Securities Litigation, 113 F.R.D. 113 (D. Colo 1986)...37 iv

6 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 6 of 49 Ingles v. The City of New York, 2003 WL (S.D.N.Y.)...2, 33 In re Southern Ohio Correctional Facility, 173 F.R.D. 205 (S.D. Ohio 1997)...17 J.B. ex rel. Hart v. Valdez, 186 F.3d 1280 (10 th Cir. 1989)... 10, 17, Jane B. v. The New York City Department of Social Services, 117 F.R.D. 64 (S.D. N.Y. 1987)...15, 21 Johnson v. American Credit Co. of Georgia, 581 F.2d 526 (5 th Cir. 1978)...33 Kendrick v. Bland, 740 F.2d 432 (6 th Cir. 1984)...17 Knapp v. Romer, 909 F. Supp. 810 (D. Colo. 1995)...31 LaMarca v. Turner, 995 F.2d 1526 (11 th Cir. 1993)...17 Madrid v. Gomez, 889 F. Supp (N.D. Cal. 1995) , 21, 35 Marioneaux v. Colorado State Penitentiary, 465 F. Supp (D. Colo. 1979)...2 McClendon v. City of Albuquerque, 272 F.Supp.2d 1250 (D.N.M. 2003)...2, 6, 34 Milonas v. Williams, 691 F.2d 931 (10 th Cir. 1982)...13, 25, 30, 33, 36 Monreal v. Potter, 367 F.3d 1224 (10 th Cir. 2004)... 9, Montez v. Romer, 32 F.Supp.2d 1235 (D. Colo. 1999)...2, 34 Murillo v. Musegades, 809 F. Supp. 487 (W.D. Texas 1992)...17 v

7 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 7 of 49 Neiberger v. Hawkins, 208 F.R.D. 301 (D. Colo. 2002)...2, 4-5, 10, 17-18, 24, 29, Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001)...24 Overton v. Bazzetta, 539 U.S. 126 (2003)...38 Patrykus v.gomilla, 121 F.R.D. 357 (N.D.Ill. 1988)...17 Paxton v. Union National Bank, 688 F.2d 552 (8 th Cir. 1982)...18, 24 Penn v. San Juan Hosp., Inc., 528 F.2d 1181 (10 th Cir. 1975)...24 Ramos v. Lamm, 639 F.2d 559 (10 th Cir. 1980)...2, 5, 12, 16, 34, 36 Riley v. Jeffes, 777 F.2d 143 (3d Cir. 1985)...12 Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974)...2 Rutter & Willbanks Corp. v. Shell Oil Co., 314 F.3d 1180 (10 th Cir. 2002)...29 Shelter Realty Corp. v. Allied Maintenance Corp., 75 F.R.D. 34 (S.D.N.Y. 1977)...37 Shook v. Board of County Com rs of County of El Paso, 2006 WL (D. Colo. 2006)...4-5, Shook v. Board of County Com rs of County of El Paso, 216 F.R.D. 644 (D. Colo. 2003)...4 Shook v. El Paso County, 386 F.3d 963 (10 th Cir. 2004)... 2, 15, 31-33, 35 Skinner v. Uphoff, 209 F.R.D. 484 (D. Wyo. 2002)...2, 10, 26, 32 vi

8 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 8 of 49 Skinner v. Uphoff, 234 F.Supp.2d 1208 (D. Wyo. 2002)...35 Stewart v. Winter, 669 F.2d 328 (5 th Cir. 1982)...38 Thompson v. County of Medina, Ohio, 29 F.3d 238 (6th Cir. 1994)...34 Umar v. Johnson, 173 F.R.D. 494 (N.D. Ill. 1997)...34 Umar v. Johnson, 1995 WL (N.D. Ill.)...8 United States Parole Commission v. Geraghty, 445 U.S. 388 (1980)...30 Von Colln v. County of Ventura, 189 F.R.D. 583 (C.D. Cal. 1999)... 2, 20-21, 25, 32, 34 West v. Atkins, 487 U.S. 42 (1988)...16 Westefer v. Snyder, 2006 WL (S.D.Ill.)...10 Yaffe v. Powers, 454 F.2d 1362 (1 st Cir. 1972)...36 STATUTES, RULES, REGULATIONS 18 U.S.C First Amendment...25 Eighth Amendment...7, 9-10, 16, 29, Fourteenth Amendment...7, 29 Rule , 15, 16, 32, 37 Rule 23(a)...1, 3, 4 Rule 23(a)(1)...4, 6 vii

9 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 9 of 49 Rule 23(a)(2)... 11, 19-20, 23 Rule 23(a)(3)...24 Rule 23(b)...4 Rule 23(b)(2) , 4-6, 10, 15-17, Rule Rule 65(d)...31 OTHER AUTHORITIES Wright & Miller, Federal Practice and Procedure 2d 2955 (1995)...31 viii

10 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 10 of 49 I. INTRODUCTION The Response to the Amended Motion to Certify Class contains a central recurring theme. Put simply, Defendants argue that the proposed classes cannot be certified because, they contend, each class member is in some sense unique and the challenged policies and practices do not adversely affect every single member of the proposed class. Thus, they argue that, because of the purported individualized nature of Plaintiffs'claims, Plaintiffs cannot satisfy either Rule 23(a) s threshold requirements of numerosity, commonality, typicality and adequacy of representation, or the requirements of Rule 23(b)(2), providing for injunctive relief. As explained below, Defendants mischaracterize Plaintiffs'allegations and misconstrue the law regarding class actions, and particularly class actions brought pursuant to Rule 23(b)(2) by residents of closed institutions, including prisons and jails, to redress violations of their civil rights. In advancing their misguided argument that certification is unwarranted due to the alleged uniqueness of each member of the proposed classes, Defendants ignore Plaintiffs' allegations in their Amended Complaint that all class members are at substantial risk of serious harm as a result of the system-wide policies, practices and procedures that the Defendants apply generally to the proposed class. Moreover, Defendants ignore the legion of cases throughout the country certifying similar cases brought by inmates seeking to enjoin violations of their civil rights. In fact, class certification is widely recognized as appropriate for injunctive litigation 1

11 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 11 of 49 claims of inmates of closed institutions relating to complaints of excessive and disproportionate force, access to mental health, and denial of due process. 1 Particularly egregious, Defendants ignore the Tenth Circuit's statement that Rule 23(b)(2) class actions are "well-suited" to cases in which "the plaintiffs attempt to bring suit on behalf of a shifting prison population." Shook v. El Paso County, 386 F.3d 963, 972 (10th Cir. 2004), cert. denied, 125 S.Ct (2005). Defendants also disregard the Advisory Committee Notes to Fed.R.Civ.P. 23(b)(2) providing that "[a]ction or inaction is directed to a class within the meaning of subdivision (b)(2) even if it has taken actual effect as to only one or a few members of the class, provided it is based on grounds which have general application to the class." Illustrative of Defendants'misconception of the law regarding class actions in the circumstances is Madrid v. Gomez, 889 F. Supp (N.D. Cal. 1995). In Madrid, the court found that prison officials at Pelican Bay State Prison violated the constitutional rights of the class of prisoners who are, or will be, incarcerated at Pelican Bay. Specifically, the court found that "defendants have failed to provide inmates at Pelican Bay with constitutionally adequate medical and mental health care, and have committed and condoned a pattern of using excessive 1 For example, courts have certified class actions challenging the use of restraints (see, e.g., Christina A. v. Bloomberg, 197 F.R.D. 664, 672 (S.D. 2000); Von Colln v. County of Ventura, 189 F.R.D. 583, 594 (C.D. Cal. 1999)); the use of tasers (see, e.g., Coleman v. Wilson, 912 F.Supp. 1282, 1293, 1323 E.D.Cal. 1995)); the use of electroshock belts (see, e.g., Hawkins v. Comparet-Cassani, 251 F.3d 1230, 1238 (9 th Cir. 2001)), remanding so plaintiff could identify appropriate subclasses to remedy class defects)); the denial of mental health care (see, e.g., Neiberger v. Hawkins, 208 F.R.D. 301, 320 (D. Colo 2002)); and the use of excessive force (Ingles v. The City of New York, 2003 WL (S.D.N.Y.) at * 9)). Moreover, in this Circuit, as elsewhere, injunctive challenges to prison and jail conditions invariably proceed as class actions. See, e.g., Carper v. Deland, 54 F.3d 613 (10 th Cir. 1995); Battle v. Anderson, 970 F.2d 716, 719 n. 4 (10 th Cir. 1992); Arney v. Finney, 967 F.2d 418 (10 th Cir. 1992); Diaz v. Romer, 961 F.2d 1508 (10 th Cir. 1992); Duran v. Carruthers, 885 F.2d 1485, 1486 (10 th Cir. 1989); Ramos v. Lamm, 639 F.2d 559 (10 th Cir. 1980); McClendon v. City of Albuquerque, 272 F.Supp.2d 1250, 1252 (D.N.M. 2003); Skinner v. Uphoff, 209 F.R.D. 484, 489 (D. Wyo. 2002); Montez v. Romer, 32 F.Supp.2d 1235 (D. Colo. 1999); Marioneaux v. Colorado State Penitentiary, 465 F. Supp (D. Colo. 1979); Romero v. Schauer, 386 F. Supp. 851 (D. Colo. 1974). 2

12 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 12 of 49 force, all in conscious disregard of the serious harm that these practices inflict." Id. at In finding such constitutional violations, the court aptly captured the anguish and despair suffered by the inmates at the mercy of the prison officials: Id. at As to the above matters, defendants have subjected plaintiffs to 'unnecessary and wanton infliction of pain'in violation of the Eighth Amendment of the United States Constitution. We observe that while the simple phrase articulates the legal standard, dry words on paper cannot adequately capture the senseless suffering and sometimes wretched misery that defendants'unconstitutional practices leave in their wake. The anguish of descending into serious mental illness, the pain of physical abuse, or the torment of having serious medical needs that simply go unmet is profoundly difficult, if not impossible, to fully fathom, no matter how long or detailed the trial record may be. The court in Madrid, contrary to Defendants'arguments that this Court cannot order an appropriate remedy, ordered counsel, with the assistance of a Special Master experienced in prison administration, "to develop a remedial plan that addresses the constitutional violations set forth in the accompanying conclusions of law." Id. at Here the proposed classes readily satisfy all of the requirements of Rule 23(a) and (b)(2). Additionally, this action is manageable as a class action, and this Court is clearly capable of enjoining the unconstitutional policies, practices and procedures pursued at the Jail. Indeed, because the proposed classes comprise the fluid composition of the Jail population, Plaintiffs will be unable to present their constitutional claims to this Court in the absence of class certification. Thus, without class certification, plaintiffs cannot put an end to the senseless suffering and wretched misery that Defendants unconstitutional practices leave in their wake. Accordingly, for all of these reasons, this Court should certify the proposed classes. 3

13 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 13 of 49 II. ARGUMENT A. The Proposed Class Should Be Certified Because it Satisfies the Requirements of Rule 23(a). Rule 23(a) requires an analysis of four elements which are preconditions to certification: numerosity, commonality, typicality, and adequacy of the named parties to represent the class. Shook v. El Paso County, 386 F.3d 963, 968 (10 th Cir. 2004) (Shook 2). 2 The Court must then look to the category of class action under Rule 23(b) for additional prerequisites involving certification of the class. Id. Contrary to contentions of Defendants, the classes readily meet all of the elements of Rule 23(a), as well as the requirements contained in Rule 23(b)(2) which addresses injunctive relief Plaintiffs Satisfy the Impracticability of Joinder Requirement in Rule 23(a)(1) To establish the impracticability of joinder requirement in Rule 23(a)(1), Plaintiffs need only to define the class adequately and then establish that the class is so numerous that joinder of all members is impracticable. Neiberger, 208 F.R.D. at 313. In determining class size, the exact number of potential members need not be shown; instead, the court makes "common sense assumptions" to support a finding that joinder would be impracticable. Id. Here, the average daily number of prisoners is approximately 150 a day. See Amended Complaint, Shook 2 reversed and remanded the decision entered in Shook v. Board of County Com rs of County of El Paso, 216 F.R.D. 644 (D. Colo. 2003) ("Shook 1"). On remand, the court denied class certification in Shook v. Board of County Com rs of County of El Paso, 2006 WL at *8 (D. Colo. 2006) ("Shook 3"). 3 Plaintiffs propose a class and two subclasses. Plaintiffs refer to these classes collectively for purposes of this Reply as the "class." 4

14 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 14 of 49 The proposed class is adequately defined and, indeed, essentially mirrors the definition of classes certified in similar cases brought by residents of closed institutions, including prisons and jails. See, e.g., Ramos, 639 F.2d at 562 (plaintiff class comprised "all persons who are now or in the future may be incarcerated in the maximum security unit of the Colorado State Penitentiary at Canon City, Colorado"); Neiberger, 208 F.R.D. at 320 (class defined as "all adult patients who are now or in the future will be involuntarily committed to the Institute of Forensic Psychiatry ("IFP") of the Colorado Mental Health Institute at Pueblo ("CMHIP") due to adjudication of not guilty by reason of insanity."). 4 Notwithstanding that the Plaintiffs'class is defined similarly to the classes in Ramos and Neiberger, Defendants nevertheless argue that the proposed class is overbroad, relying on the holding in Shook 3 in stating that "recently, under similar circumstances, Judge Matsch ruled that identical class-defining language was "too broad." (Response at p. 7 citing Shook v. Board of County Com'rs of County of El Paso, 2006 WL (D. Colo. 2006) ("Shook 3") at *8. Plaintiffs respectfully submit that Shook 3, which is currently on appeal, was wrongly decided (see Section II(A)2(a)(ii), infra), and Defendants mischaracterize the decision in Shook 3 in any event. In Shook 3, Judge Matsch ruled that a class consisting of "[a]ll persons with serious mental health needs who are now, or in the future will be, confined in the El Paso County Jail" "is a group that is too amorphous to proceed as a class, even one under Rule 23(b)(2). Id. at 7 4 Other jurisdictions have certified classes which were defined similarly to the proposed class here. See, e.g., Hiatt v. County of Adams, Ohio, 155 F.R.D. 605, 610 (S.D. Ohio 1994) (inmates challenging jail conditions -- class defined as "all persons confined at the Adams County Jail on August 19, 1993, all persons subsequently confined there, and all persons who may be so confined in the future"); E. Jones 'EL v. Berge, 2001 WL at * 1 (W.D.Wis.) (class defined as "all persons who are now, or will in the future be, confined in the Supermax Correctional Institution in Boscobel, Wisconsin"). 5

15 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 15 of 49 (emphasis in original). Judge Matsch also rejected, as too broad, a proposed alternative class defined as "all persons who are now, or in the future will be, confined in the El Paso County Jail." Id. at *8. Judge Matsch mistakenly reasoned that plaintiffs did not claim that certain alleged conduct constituted cruel and unusual punishment in every instance, but instead their complaint was about conduct imposed on prisoners with serious mental health needs. Id. Judge Matsch's conclusion that the class definition was improper is inconsistent with numerous cases in which classes have been certified in virtually identical terms. 5 Defendants also mischaracterize Plaintiffs'allegations regarding the absence of written policies governing the use of four of the five so-called "compliance devices." Defendants contend, erroneously, that the absence of such written policies has no legal significance. On the contrary, the absence of written policies regarding the use of potentially dangerous devices is evidence of the class-wide risk of harm. This is especially so in view of the recommendations of the United States Department of Justice and other respected correctional organizations that certain devices be used only with strict regulations that limit their use and establish safeguards. (Amended Complaint at 21, 22, 23, 24, 73, 76 and 77). Defendants next contend, without any legal support, that Plaintiffs'proposed designation of subclasses indicates a lack of commonality in the classes as a whole. They further contend that it would be error to permit a convicted prisoner to represent a class containing unconvicted pretrial detainees and vice versa. This argument does not pertain to the numerosity requirement 5 See, e.g., McClendon v. City of Albuquerque, 272 F.Supp.2d 1250, 1252 (D.N.M. 2003) ("all persons with mental and/or developmental disabilities" incarcerated in county jail); Coleman, 912 F. Supp. at 1293 ("all inmates with serious mental disorders who are now or who will in the future be confined within the California Department of Corrections"); Bradley v. Harrelson, 151 F.R.D. 422, 423 (M.D. Ala. 1993) ("all acutely and severely mentally ill inmates"); Anderson v. Coughin, 119 F.R.D. 1, 2, 3 (N.D.N.Y. 1988) (certifying class including "all inmates... who suffer from a mental illness"). 6

16 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 16 of 49 in Rule 23(a)(1), and is wrong in any event. See 15 and 16 of Plaintiffs Amended Motion to Certify Class for analysis of the designation of subclasses. Convicted prisoners are protected by the Eighth Amendment against "cruel and unusual punishments," whereas pretrial detainees are protected by the due process clause of the Fourteenth Amendment against any conditions that constitute "punishment." Bell v. Wolfish, 441 U.S. 520, 535 (1979). Nevertheless, the Tenth Circuit has held that, in the context of challenges to conditions of confinement, the Eighth Amendment provides a benchmark for such claims under the Fourteenth Amendment, and Eighth and Fourteenth Amendment standards are equivalent. Craig v. Eberly, 164 F.3d 490, 495 (10 th Cir. 1998). "Pretrial detainees... have been included in the same class as convicted inmates..." Newberg on Class Actions, 4 th ed. 25:8, citing Green v. Ferrell, 664 F.2d 1292 (5 th Cir. 1982). Here, with respect to those claims where such an overlap in standards does not occur, Langley, the only class representative who is a prisoner, will only represent the subclass of prisoners, as opposed to the subclass of pretrial detainees. Defendants further mistakenly contend that, with respect to the individual claims, numerosity is not satisfied, arguing that joinder is not impracticable because, for example, allegedly no inmate has actually been shocked by the Nova belt, and allegedly there is no evidence as to the population of jail inmates with "serious mental health needs." Moreover, Defendants argue that even assuming numerosity is met, "none of the classes can be certified since the Amended Complaint does not identify a single unified policy that applies to every 7

17 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 17 of 49 single member of the proposed classes." 6 Defendants are wrong on both counts for the same reason. Plaintiffs have clearly alleged that all class members are at substantial risk of serious harm as a result of the policies, practices and procedures described in the Amended Complaint and the Amended Motion to Certify Class and applied generally to the proposed class. The Amended Complaint provides examples of regular, frequent and routine acts and omissions which were carried out pursuant to these policies and practices. Alternatively, Plaintiffs allege that Defendants are aware of these regular, frequent, or routine acts or omissions and are deliberately indifferent to the risk they pose to prisoners safety and constitutional rights. (Amended Complaint, ). Assuming the class is too broad, which it is not, Plaintiffs propose alternative subclasses which more narrowly describe the class of prisoners subjected to each specific type of harm. For example, with respect to the first claim for relief pertaining to Defendants unconstitutional use of the so-called compliance devices, a subclass could consist of all present and future prisoners at the Jail who have been or may be subjected to the use of the restraint chair, the pepperball gun, 6 Defendants assert that the closest allegation of a specific identifiable policy that might apply across the board to all inmates is the attorney violation policy, and then argue that the deprivation alleged in the Amended Complaint was the result of an alleged misapplication of that policy. Defendants mischaracterize the allegations in the Amended Complaint. They do not allege any misapplication of policy, but instead allege that the denial of the visit on June 15, 2006, was carried out pursuant to the policy of the Defendants adopted for the purpose of interfering with the ACLU investigation. (Amended Complaint, 3, , 319). This policy violates, and threatens to violate, the constitutional rights of all inmates at the Jail. Moreover, contrary to Defendants'contention, this policy does not affect only prisoners who desire to file civil actions. Instead, Plaintiffs allege that prisoners facing criminal charges also face an unjustifiable risk of being prevented from meeting with criminal defense attorneys who are asked by family or friends to consider representing a prisoner. (Amended Complaint at 242). 8

18 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 18 of 49 tasers, and/or pepper spray. Such classes have been certified by federal district courts throughout the country. 7 Defendants next rely on Monreal v. Potter, 367 F.3d 1224 (10 th Cir. 2004) in support of their argument that class certification is not warranted in this case. Defendants reliance on Monreal is unavailing. In Monreal, the Court found that "[p]laintiffs simply [had] not articulated a policy -- besides generalized non-compliance with Title VII -- that could be the subject of injunctive or declaratory relief..." Id. at Here, in contrast to Monreal, plaintiffs have articulated specific unconstitutional policies, procedures and practices which they seek to enjoin. See discussion of remedy in Section II(B)(1). Defendants'contention that no inmate has yet been shocked by the Nova belt, assuming this fact be true, is irrelevant. All inmates are subject to having to wear the belt and are threatened by an unwarranted shock. Thus, Plaintiffs are subjected to the terror and fear of being shocked. As Defendants acknowledged in their Answer, any prisoner can be classified as supermax at any time, and Defendants have declared that all prisoners in supermax status must wear the belt. Similarly, the statement in Mr. Dawson's Affidavit that most of the inmates are 7 See, e.g., Austin v. Hopper, 15 F.Supp.2d 1210, (M.D.Ala. 1998) ( all present and future Alabama inmates who have been or may be placed on the hitching post ); Umar v. Johnson, 1995 WL (N.D. Ill.) at *1 (all inmates at Stateville Correctional Center (a) who now have, or who hereafter during the pendency of this action will have, pending disciplinary or grievance hearings; (b) who have requested or hereafter request the presence of witnesses at such hearings; and (c) whose requests in that respect have been or are hereafter denied as a result of defendants practice of such denials); Anderson v. Cornejo, 199 F.R.D. 228, 263 (D. Ill. 2000) (certifying injunctive class under 23(b)(2) defined as all airline passengers subjected to non-routine personal searches by United States Customs employees at any United States international airport); Farm Labor Org. Comm. v. Ohio State Highway Patrol, 184 F.R.D. 583, 586 (D. Ohio 1998) ("all current and future Hispanic motorists and/or passengers traveling in Ohio, who are involved in traffic stops by officers, agents or employees of the Ohio State Highway Patrol, and are questioned about immigration matters, or suffer the seizure of their lawfully issued immigration documents"). 9

19 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 19 of 49 "docile and nonviolent" is irrelevant. 8 Plaintiffs have alleged that Defendants act or refuse to act on grounds that are generally applicable to the entire class of prisoners. Prison and jail officials violate the Eighth Amendment when, acting with deliberate indifference, they subject prisoners to a "substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 828 (1994). The threatened harm need not be imminent. See Helling v. McKinney, 509 U.S. 25, 33 (1993) ("[w]e have great difficulty agreeing that prison authorities... may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next... year"). Indeed, for purposes of injunctive relief, the threatened harm need never materialize; it is the risk that violates the Eighth Amendment and entitles the plaintiffs to injunctive relief. "[I]t would be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them". Id. Here, as in Neiberger, the focus is on common issues such as the Defendants policies and general practices, not the application of those policies in particular cases. Neiberger, 208 F.R.D. at 314. In Neiberger, the court, in addressing numerosity, rejected the argument that because each plaintiff had different diagnosis and treatment issues, each plaintiff's case required a particularized analysis. Thus, the court held that "[p]laintiffs are alleging across-the-board systemic defects." Therefore, in determining that numerosity was met, the court held that these common issues outweigh individualized problems. Id. 2. There are questions of law and fact common to the class. 8 Even if the alleged "facts" were somehow relevant to this inquiry, an examination of the merits should not be performed in deciding whether to certify a class. Eisen v. Carlisle & Jacqueline, 417 U.S. 156, 177 (1974) (the court cannot consider the merits of plaintiffs claims in determining whether a suit may be maintained as a class-action). 10

20 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 20 of 49 Rule 23(b)(2) requires only a single common question of law or fact. J.B. ex rel. Hart v. Valdez, 186 F.3d 1280, 1288 (10 th Cir. 1989). Thus, "the commonality requirement has been characterized as a 'low hurdle'[that is] easily surmounted [citations omitted], because to satisfy commonality, a plaintiff need only show that there is 'at least one question of law or fact common to the class. " Westefer v. Snyder, 2006 WL at *3 (S.D.Ill.) (internal citations omitted); Skinner v. Uphoff, 209 F.R.D. at 488 ("Because a single common issue can satisfy commonality, some courts have described the commonality standard as one that is fairly easily met.") (citing Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir. 1994)). Here, Plaintiffs meet the commonality requirement of Rule 23(a)(2). a. There are common questions of fact. The Amended Complaint identifies numerous common questions of fact that readily satisfy Rule 23(a)(2). (Amended Motion, at pp. 5-6). Plaintiffs identify, for example, as a common question of fact "[w]hether the acts and omissions of the Defendants and their deputies with regard to the use of force, including the restraint chair, the pepperball gun, pepper spray, tasers, and/or the electroshock belt, pose unreasonable risks of harm to prisoners'health, safety, welfare, and constitutional rights." (i) Plaintiffs properly challenge the Jail's system-wide policies, practices and procedures imposed upon all inmates. Defendants argue that they are not constitutionally required to adopt written policies, and that the nonexistence of written policies cannot constitute a common fact that satisfies Rule 23(a)(2). The Amended Complaint, however, alleges common issues of fact far more extensive than the lack of written policies to mitigate potential abuses by deputies. The common factual issues include the actual policies, practices and procedures that the Defendants apply generally 11

21 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 21 of 49 on a class-wide basis to all of the prisoners at the Jail. These policies, practices, and procedures pose unreasonable risks of harm to the health, safety, and welfare of the prisoners, in violation of the Eighth and Fourteenth Amendments. Defendants argue that not one of the facts alleged by Plaintiffs is common to all members of the proposed class. They contend that not all jail inmates will be subjected to the use of compliance devices, denied access to courts or counsel, disciplined or in need of mental health care. This argument is misplaced. "In a civil rights suit, commonality is satisfied where the lawsuit challenges a systemwide practice or policy that affects all of the putative class members." Armstrong v. Davis, 275 F.3d 849, 868 (9 th Cir. 2001). In their Amended Complaint, Plaintiffs allege that Defendants have subjected and/or threatened to subject, all present and future inmates at the Jail to their unconstitutional system-wide policies, practices and procedures. Thus, commonality is satisfied in that each prisoner, by virtue of the Jail's policies, practices and procedures, is subject to the same harm actually physically imposed upon other prisoners. For example, an inmate need not wait until he is actually physically unconstitutionally abused; instead, threat of such abuse through the Jail's unconstitutional policies, practices and procedures is sufficient. Ramos, 639 F.2d at 572 ("an inmate does have a right to be reasonably protected from constant threats of violence and sexual assault from other inmates.... Moreover, he does not need to wait until he is actually assaulted before obtaining relief."); Baby Neal, 43 F.3d at 56 ("[C]lass members can assert such a single common complaint even if they have not all suffered actual injury; demonstrating that all class members are subject to the same harm will suffice") (emphasis in original); Hassine v. Jeffes, 846 F.2d 169, , n. 5 (3d Cir. 1988) 12

22 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 22 of 49 (Rule 23 does not require all plaintiffs actually suffer the same injury; rather, the fact that plaintiffs were subject to the injury, and that they faced the immediate threat of these injuries, the possible need for adequate mental health care in the future) sufficed for Rule 23; Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985) (finding constitutional violation in prisoners being subject to constant threat of violence and sexual assault, and rejecting contention that plaintiff must actually be assaulted before obtaining relief). Contrary to Defendants argument, the Tenth Circuit s decision in Milonas v. Williams, 691 F.2d 931 (10 th Cir. 1982) supports class certification in this case. The practices challenged in Milonas included placing boys in isolation facilities and using unjustifiable and excessive physical force. Although there was no allegation that each and every resident of the facility was actually the victim of excessive force or was actually placed in isolation, the court explained that every resident was indeed in danger of being subjected to the enjoined behavior-modification practices. Id. at 938. Here, as in Milonas, Plaintiffs allege that each prisoner is in danger of being subjected to the excessive use of force. Indeed, Defendant Dawson has vowed to use socalled compliance devices on any prisoner who fails to comply with orders or who makes a verbal statement that deputies construe as a "threat." (Amended Complaint, 30, 57). (ii) Shook 3 is factually distinguishable, and wrongly decided. In an effort to establish lack of commonality, Defendants rely on Judge Matsch's decision in Shook 3 finding that the class defined as "all persons with serious mental health needs who are now, or in the future will be, confined to the El Paso County Jail" lacked sufficient commonality to warrant certification. Shook 3 at *9 (appeal pending). 13

23 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 23 of 49 In Shook 3, Plaintiffs brought a class-action complaint alleging various policies and practices at the El Paso County Jail, such as inadequate staffing and training, that increased the risk of mental and physical harm to mentally ill inmates, including the risk of self harm. All of the policies and practices complained of related to prisoners with serious mental health needs. The plaintiffs in Shook 3 sought an order enjoining the defendants to remedy these deficiencies including, for example, to "cease using restraints, pepper spray, and electroshock weapons (tasers) against prisoners exhibiting signs of mental illness in circumstances that pose a substantial risk of serious harm to such prisoners." Id. at *3. Judge Matsch noted that "[t]he plaintiffs candidly state that the purpose in pursuing this action is to determine the 'scope of prisoner's constitutional rights to mental health services'and identify it as the legal standard that is common to the entire class of 'jail prisoners with serious mental health needs.'" Id. at *5. Judge Matsch, however, observed that mental disorders are "difficult to categorize, and indeed the term 'mental disorder'is not subject to precise boundaries." Id. at *6. Judge Matsch held that the term "serious mental health needs" was vague and that the class was too amorphous to proceed as a class. Judge Matsch further held that "[c]ertification of a nebulous class would result in numerous problems." Id. at *7. Shook 3 is factually distinguishable from this case. In Shook 3, Judge Matsch found that "the plaintiffs do not complain of a written policy or standard procedure or practice to which all class members are subject." Shook 3 at *11. Judge Matsch further found that "[t]he plaintiffs do not complain of a lack of conduct that is premised on grounds applicable to the entire class." Shook 3 at *11. Here, Plaintiffs complain of policies, practices and procedures to which all 14

24 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 24 of 49 persons in the Jail are subject. Thus, presumably even Judge Matsch would have certified the class proposed by Plaintiffs in this case. Also, unlike Shook 3, no inquiry need be made as to whether a particular prisoner suffers from any mental disorder. Thus, unlike Shook 3, Plaintiffs do not seek an order requiring Defendants to "cease using restraints, pepper spray, and electroshock weapons ("tasers") against prisoners exhibiting signs of mental illness in circumstances that pose a substantial risk of serious harm to such prisoners" (Emphasis added). Instead, Plaintiffs seek, inter alia, an order requiring Defendants to cease their unconstitutional policies, practices and procedures to which all Jail prisoners are subject. In any event, Plaintiffs respectfully submit that Judge Matsch's decision in Shook 3 is wrong and that other decisions certifying such class actions represent the better view. Cf., Jane B. v. The New York City Department of Social Services, 117 F.R.D. 64, 70 (S.D. N.Y. 1987) ("common questions of fact as to whether defendants have failed to provide plaintiffs with adequate medical, psychological, counseling and educational services, safe and sanitary conditions, and adequate supervision."); see also, n. 5, supra, citing cases in which classes have been certified in virtually identical terms as that in Shook 3. Among other things, Judge Matsch "prematurely focused on whether the court could ultimately fashion a remedy that satisfied" the Prison Litigation Reform Act ("PLRA"), contrary to the Court's admonition in Shook 2 that it not do so. Shook 2, 386 F.3d at 972. Moreover, Judge Matsch focused on the difficulty in identifying the members of the class even though the Court in Shook 2 made clear that perceived difficulty in identifying members of the plaintiff class not justify denial of certification under Rule 23(b)(2). Id. Additionally, Judge Matsch 15

25 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 25 of 49 improperly evaluated the merits of the plaintiffs'claims contrary to Shook 2. Id. at 971 ("In determining the propriety of a class-action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.") In evaluating the merits, Judge Matsch also made errors of substantive law in concluding that the Constitution does not "affirmatively create[] a right to mental health services or treatment." Shook 3 at *5. Compare West v. Atkins, 487 U.S. 42, 56 (1988) (the government bears "an affirmative obligation to provide adequate medical care" to prisoners in its custody); Ramos, 639 F.2d at 574 (the State is required to make available to inmates a level of medical care reasonably designed to meet the routine and emergency health care needs of inmates, including psychological or psychiatric care). Finally, Judge Matsch erred in his application of Rule 23's requirements in assuming that a challenge to inadequate health care services in a prison or jail can never be litigated as a class because "[t]he interest protected by the Eighth Amendment is highly individualistic and case specific in character." The statement is directly contrary to the holding in Ramos affirming the District Court's finding of "deliberate indifference to the serious health needs of prison population." Ramos, 639 F.2d at 578. Thus, to the extent Judge Matsch's decision is interpreted to prohibit all class actions seeking to enjoin systemic Eighth Amendment violations, including deliberate indifference to serious medical needs involving mental health, and excessive use of force, and particularly excessive use of force with respect to policies, practices and procedures pertaining to restraint chairs, chemical weapons and electroshock weapons, Plaintiffs submit that Shook 3 was wrongly 16

26 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 26 of 49 decided and contrary to Tenth Circuit precedent and to federal court decisions in Colorado and throughout the country certifying similar class actions pursuant to Rule 23(b)(2). See, e.g., Baby Neal, 43 F.3d at 57 (noting that "(b)(2) classes have been certified in a legion of civil rights cases where commonality findings were based primarily on the fact that defendants conduct is central to the claims of all class members irrespective of other individual circumstances and the disparate effects of the conduct.") (citing 7A Wright et al, 1763 at 219) 9 ; Neiberger, supra; and Christina A., 197 F.R.D. at In Neiberger, patients in a state mental health facility, pursuant to adjudications of not guilty by reason of insanity ("NGRI"), brought a class-action seeking only injunctive and declaratory relief and alleging claims for, inter alia, violations of due process, the Rehabilitation Act, and the Colorado Care and Treatment of the Mentally Ill Act. In ruling that plaintiffs 9 The Tenth Circuit in J.B. Hart v. Valdez, 186 F.3d 1280 (10 th Cir. 1999) ruled that "[g]iven the complex facts and legal issues involved in this case, we cannot say the district court abused its discretion when it refused to characterize plaintiffs'claims as a systematic violation." Hart, 186 F.3d at In so ruling, the Court in Hart recognized that this conclusion differed from that reached by the Third Circuit in a similar case. Id. at 1289, n. 5 citing Baby Neal, 43 F.3d at An analysis of the Hart decision is contained in Section II.(A)(2)(b)(ii). 10 See also Anderson v. Garner, 22 F. Supp.2d 1379, 1387 (N.D. Ga. 1997) (certifying inmate class-action claiming use of excessive force during "shakedowns," and holding that the conduct of the Tactical Squad officers applies generally to members of the proposed class, thus satisfying the "generally applicable" requirement of Rule 23(b)(2) (citing cf. LaMarca v. Turner, 995 F.2d 1526, (11 th Cir. 1993) (affirming injunctive order issued to Rule 23(b)(2) class consisting of prisoners); Kendrick v. Bland, 740 F.2d 432 (6 th Cir. 1984) (affirming portions of injunctive order preventing use of excessive force by prison guards at the Kentucky State Penitentiary, after inmates litigated in district court as Rule 23(b)(2) class); Hoptowit v.ray, 682 F.2d 1237, 1245, (9 th Cir. 1982) (affirming injunctive order issued to Rule 23(b)(2) class consisting of prisoners); In re Southern Ohio Correctional Facility, 173 F.R.D. 205, 208 (S.D. Ohio 1997) (approving settlement of Rule 23(b)(2) class action brought by prison inmates); Austin v. Pennsylvania Dep t of Corrections, 876 F. Supp. 1437, 1444 (E.D. Pa.) (same); Murillo v. Musegades, 809 F. Supp. 487, (W.D. Texas 1992) (certifying Rule 23(b)(2) class consisting of Hispanic citizens who alleged, among other things, use of excessive force by El Paso Border Patrol officers); Patrykus v.gomilla, 121 F.R.D. 357, (N.D.Ill. 1988) (certifying Rule 23(b)(2) class consisting of homosexual and bisexual men who alleged use of excessive force by police during raid of nightclub); Curtis v. Voss, 73 F.R.D. 580, (N.D.Ill. 1976) (certifying Rule 23(b)(2) class consisting of all inmates at Stateville Correctional Center based on allegations of excessive force by prison guards)). 17

27 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 27 of 49 satisfied the commonality requirement with respect to the NGRI patients at the facility, the court rejected defendants' argument that the individual differences in the cases required a particularized analysis that precluded class treatment. The court held that the defendants "mistakenly emphasized each patient's individual psycho-pathology, rather than the alleged systemic, institutional defects at [the state mental health facility]." Neiberger, 208 F.R.D. at 315. Moreover, the court held that "[i]t is these systemic problems which the Plaintiffs argue violate their statutory and constitutional rights. The commonality requirement is therefore met as to the NGRI patients at IFP." Id. Here, as in Neiberger, Defendants mistakenly emphasize the particular circumstance of each inmate, rather than the class-wide policies and practices that are the focus of Plaintiffs challenge. The commonality requirement is satisfied "as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of litigation." Hiatt, 155 F.R.D. at 609. The court s decision in Christina A., like Neiberger, also demonstrates that Plaintiffs allegations demonstrate the necessary commonality. The residents of a juvenile boarding school challenged several policies similar to policies challenged in this case, such as use of restraints, lack of disciplinary due process, and excessive use of force. With regard to the use of restraints, for example, the court noted that the common questions were the defendants policies and practices, not the particular application of those policies in individual or specific cases. The court in Christina A. held that "[t]he fact that those conditions, policies and procedures affect the Plaintiffs differently does not defeat the commonality of their claims." Id. at 668. Moreover, the court held that "the Plaintiffs'claims are directed towards the conditions, policies and practices at 18

28 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 28 of 49 Plankinton in general and not the application of those conditions to each individual member of the class." Id. at Here, as in Christina A., the fact that the conditions, policies and procedures may affect the Plaintiffs differently does not defeat commonality. Plaintiffs'claims are directed towards the conditions, policies and practices at the Jail in general and not the application of those conditions to each individual member of the class. See also Hargett v. Baker, 2002 WL (N.D.Ill.) at *3 ("Whatever the factual variations among the individual SVP [sexually violent persons] mental-health needs may be, the Plaintiffs'attack on the SVP treatment program is premised on a broad allegation that the Defendants engaged in standardized conduct toward the members of the proposed class "); Austin v. Hopper, 15 F.Supp.2d at 1225 ( Though there certainly may be some factual differences between the individual class members and the nature and severity of their treatment on the chain gang [use of a hitching post as a disciplinary tool], such individual differences to not defeat certification because there is no requirement that every class member be affected by the institutional practice or condition in the same way ). b. There are common questions of law. As set forth in Plaintiffs'Motion, the Amended Complaint identifies numerous common questions of law that readily satisfy Rule 23(a)(2). Plaintiffs identify, for example, as a common question of law: [w]hether the alleged policies and practices and alleged acts and omissions of the Defendants exhibit deliberate indifference to the risk that deputies will violate prisoners' 11 In Christina A., the defendants noted that each of the four plaintiffs agreed that the restraint was appropriate or necessary. Nevertheless, the court ruled that "[a] determination of commonality, however, should not be confused with an examination of the merits of the claim. Id. at 668, n. 1 (citing Paxton v. Union National Bank, 688 F.2d 552, 561 (8 th Cir. 1982)). 19

29 Case 1:06-cv PSF-MJW Document 27 Filed 10/24/2006 Page 29 of 49 rights under the Eighth and Fourteenth Amendments and Article II, Sections 20 and 25 of the Colorado Constitution." (i) All putative class members are subject to, and threatened by, Defendants' unconstitutional policies, practices and procedures. Defendants contend that "[t]here is no one statutory or constitutional claim common to all plaintiffs and all putative class members." (Response at 15). Specifically, Defendants contend that not all members have been, or are imminently likely to be, subjected to the use of compliance devices or other alleged physical abuses; that not all members of the putative class have been, or are imminently likely to be, affected by policies regarding attorney communications; and that not all members of the putative class suffer from serious mental health problems. Thus, Defendants argue that the common questions of law do not satisfy the commonality requirement of Rule 23(a)(2). Notwithstanding that this argument appears to be addressing whether there are common factual issues, Defendants'overly narrow interpretation of the commonality requirement is misguided. Contrary to Defendants'argument, all of the questions of law identified in the Motion are common to all putative class members. That, for example, not all class members actually have been physically subjected to the use of compliance devices is not determinative. Instead, what is determinative is that each inmate at the Jail is threatened by, and subject to, the Jail's unconstitutional policies, practices and procedures, including those pertaining to the use of these compliance devices. See Von Colln, 189 F.R.D. at 591 ("plaintiffs'causes of action involve common questions of law i.e., whether the Ventura County practice of using the Pro-straint chair violates an arrestee's constitutional and statutory rights."); cf. Hayes v. Secretary of Dept. of 20